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lE 671 
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I Copy 1 






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Book. 



POLITICAL HISTORY, 



THE REPUBLICAN PARTY DEFENDED. 



A Reviewee Reviewed. 



11 THE SESSION^ Y HENRY -BROOKS- ADAMS, REVIEWED BY 
HON. T. 0.1e|0WE, U. S. SENATOR FROM WISCONSIN. 



In the North American (Quarterly) Review for July, there appeared a 
long criticism of the acts of the present National Administration, and of 
Congress, entitled " The Session," by Henet Beooks Adams. Senator 
Howe of Wisconsin, published in the Wiscotisin State Journal of Oct. 
7, 1870, a review of that production, as follows : 



The first broadside against the Republican 
party in the campaign of 1870, issues from 
an unexpected quarter. It is fired from the 
embrasures of the only Quarterly in the 
United States which professes to be devoted 
to the interests of pure and independent 
criticism. 

The North American Eevieto is the only 
periodical known to us, which is so indiffer- 
ent to all parties in politics — to all sects in 
religion — to all sides in morals, as eyen to 
profess to hold Trojan and Tyrian in equal 
regard. 

For this reason, if for no other, the arti- 
cle in the JulyNo. of that Review on " The 
Session, " would seem to demand some no- 
tice. But there is another reason why Re- 
publicans should yield more than the respect 
of a mere reading to the article in question. 

That other reason is found in the distin- 
guished paternity claimed for it. The au- 
thor is proclaimed to be not only a Statesman 
himself, but to belong to a family in which 
\ Statesmanship seems to be preserved by 
■ propogation — something as color is in the 
leaf of the Begonia, perpetuating resem- 
i blance through perpetual change. He may 
fairly be said to have been sired by at least 



two Presidents and a half. He belongs to a 
family in which the statutes of descent 
have preserved, fame, fortune, fondness for 
affairs, ambition for public employment, and 
everything but fidelity to opinions. Indeed, 
political opinion seems to have been the one 
species of property in which no member of 
that family has had a fee simple or any other 
than an estate at will. 

The critic of the North American Review 
is said to be no other than a great grandson 
of that John Adams, who having aided to 
make Geo. Washington, Commander-inChief 
of the revolutionary army, afterwards, in 
the language of Mr. Madison, *' caballed '* 
against him during the war — who having 
been made successively Vice President 
and President by the Federal party, after- 
wards abandoned it to join the Republican 
party. He is said to be a grandson of that 
John Quincy Adams, who in early life was 
sent to the Hague, to Lisbon and Berlin by a 
Federal administration, as Minister of the 
United States, and was then chosen by the 
Federal party in Massachusetts, to the Sen- 
ate of the United States, and who, before 
his first term in the Senate had expired, 
abandoned that party to join the opposition 



\^ 



I ! 



— who, later in life having been elected 
President of the United States by one 
party, afterwards abandoned it to join an- 
other party. He is said to be the son [of 
that Charles Francis Adams, who almost in 
the twinkling of an eye, was translated from 
the editor of a Whig organ in Boston, to 
the candidate of the Free Soil party for 
Vice President — who, in the Legislature of 
Massachusetts signalized his ho-tility to sla- 
very, by threatening a dissolution of the 
Union, as the penalty for the annexation of 
Texas, end who, in the Congress of the Uni- 
ted States, in January, 1861, signalized his 
toleration of slavery, by offering to surren- 
der all '.he territories of the Nation to its de- 
filement — to surrender also that very con- 
stitutional prerogative by the exercise of 
which three- fourths of the States have since 
abolished slavery throughout the Republic 
—and who gravely argued that if slavery 
would not be satisfied with even those con- 
cessions, rather than attempt coercion, t^ e 
government should be content so long as 
tbere was "no obstacle to its regular con- 
tinuance in not less than twenty States " — 
who, in 1861, went out under Republican ap- 
pointment to represent this Government 
at the first Court in Europe, and who 
seven years after came back to aid in 
the overthrow of that party whose high 
trusts he had enjoyed. 

Being thus, as it were, the epitome or brief 
a;bstract of all political parties known to 
our hbtory, the contributor has manifest 
advantages for the work of political criti- 
cism. And a profound consciousness of 
these advantages is betrayed in every line 
of his critique. From those serene heights 
to which the varied experiences of his 
family have elevated him, he looks down 
upon the labors of the late session, unmov- 
ed by any touch of indignation, at all the 
crimes of " ladicdism," or by any sei ti- 
ment of compassion, for all the disappoint- 
ments of "conservatism." Neither the 
griefs of his political friends or the suffer- 
ings of his country — neither his love Of 
right or his hatred of wrong, awaken in the 
critic any sentiment more violent than a 
gentlemanly sort of irony. 

It is manifest he is in no danger of being 
betrayed into error by an excess of zeal ; 
and that is an additional reason for stopping 
a moment to consider whether his criticisms 
be not just. 

It is worthy of mention, that while this 
contributor writes for the most impartial of 
all known organs, he writes for the most big- 
oted of all known organizations. He takes 
his goods to market over the " ind^endent 
line," but he takes them to a Democratic 
market. The critique was contributed to 
the North American Review. But two days 
before the i^m«M could be bought in Chicago, 
the criticism could have been read iu the 
columns of the Chicago Times under the 



1^4 

most startling of display lines and with the 
following preface : 

"The North American Review for July con- 
tains the following article from the pen of 
Henry Brooks Adams. It is a scathing ar- 
raignment of the radical party on matters 
of vital interest to the country and will 
repay a careful perusal." 

We have given it that careful perusal and 
are prepared to make compensation in kind 
for all the pleasure it has afforded us. 

It was to have been expected, of course, 
that the first count in tiis "scathing ar- 
raignment" would present the Repulican 
party for infidelity to the constiution. 

Under all constitutional governments that 
is the staple of all oppositions. It is so easy 
to charge a violation of the constitution and 
so difficut to disprove it, that it shoidd not 
be expected an opposition having any enter- 
prise would forego the use of it. 

If ever a political party could be estopped 
from the use of such a calumny, one would 
think the present opposition should be. 
The controlling forces of that opposition 
have just emerged from the bloodiest war 
known to history, waged for the avowed 
purpose of destroying the Constitu'ion. 

If any party could be exempt from such a 
calumny, one would think the present Ad- 
ministration should be. Its friends have 
scarcely wiped off the sweat poured out in 
defense of the Constitution during that 
same war. But it is said that nowhere i 
the charge of incontinent so freely fabri- 
cated or so fiercely hurled as in the broth- 
els. And we know that nowhere has 
the charge of hostility to the Constitu- 
tion been so freely denounced as among 
the traitors who armed to' destroy it. 

But the critic of the North American was 
not a traitor. He did not join them until 
they were disarmed. He has therefore some 
claim to a special license to urge this charge. 
At all events, in a country so free as this, 
that license will not be denied him. 

But it is marvellous to witness; the use he 
makes of it. Every village lawyer knows it 
requires but very little learning to prose- 
cute upon the indebitatus counts. One 
would suppose it required quite as little to 
prosecute upon this old and stale charge of 
infidelity to the Constitution. But even 
that little seems wanting to this reviewer. 
He neither seems to comprehend the cur- 
rent history of the times nor the text of th3 
Constitution ; and he utterly mistakes the 
motives of those who framed the Constitu- 
tion. 

There is throughout the article a great 
deal of theory and but few facts ; an intol- 
erable quantity of sack and not much bread. 
Eliminate what is mere speculation, and we 
find the cause of the Constitution presented 
in the manner following: 

;' The Government of the UnitedStales ispaseing 
through a pjrlod of transiton."^ 



"The men, who made the Constitntion, intended 

te make, by its means, a distinct issue with an- 

^ tiquity." * * * " Their purposes were 

<>il^ perhaps chimerical." * * * " " The hopes 

5J<^^Uien felt were almost certainly delusive." 

* * * II rpjjg great object of terror and 
^suspicion to the people of the thirteen provinces was 

power — not merelv power in the hani.s of a Presi- 

jYdenv or a prince, of one assembly or of several, ot 

many citizens or a few, but power in the abstract, 

V-^'-where ever it existed and under whatever name it 

■'was known." * * * "Supreme, irre-ist- 

N ible authority must exist somewhere lu every Gov- 

'^^ ernment, was the European political theory." * * 

* * * " America, on the other hand, 
asserted that the principle was not true." * * 

* ,f * " and that the new govCTnment 
should start Irom th>' idt a that the public liberties 
depenfted upon denying uncontrolled anlhcri.y to 
the political system m its parr- ortn its whole?' 

* * * nfhe Iramers of the republic 
did not indeed presume to prescribe or limit the 
power? a nation might exercise if its existence were 
at stake. They knew that under such an emer- 
gency all paper limitations must yield." * * 

* * * " The civil war broke out in the 
United States, and of course^ for the time obliter- 
ated the Constitution. Peace came, and with it 
came the moment for the settlement of the 
long scientific dispute. If the Constitutional sys- 
tem restored itse-f^ America was right and the 
oldest piobiem iu poll ical scieLce was solved.'' 

This exposiiiou of our political system 
may claim one merit; that of absolute orig- 
inality. It has never found expression be- 
fore, any where, and it is quite safe to pre- 
dict it will never find expression again. 

Naturalists tell us that the tortoise when 
assailed, draws its head ard limbs withio its 
sh-eld and can nither be seen or touched. 
When the danger is p st, its head and limbs 
are extended a^ain and it crawls on. Ac- 
cording ' o this latest exposition of the dem- 
ocratic theory, the Constitution was framed 
upon the tortoise principle. When the war 
broke out it would seem the Constitution 
had performed admirably and had retired 
under its carapace exactly as designed by its 
fram^rs ! 

" The long scientific dispute " was, would 
it extend itself again upon the return of 
peace. 

"Every one knows the strange concur- 
rence of accidents," says the critic seuten- 
tiously, " if anything in social sequence can 
be called accident, which seemed to prevent 
a fair working of the tenoency to restora- 
tion during the four years that followed the 
actual close of the war." The war hid 
closed, but the Constitution did not emerge. 
For four years it was the victim of strange 
accidents — like the gambler of Poker Flat 
— it " struck a streak of bad luck !" 

Evidently the "strange concurrence of 
accidents " here referred to, must be, first, 
the fortuitous murder of a Republican Presi- 
dent; second, the accidental succession of 
Mr. Johnson, the Vice President, who be- 
came President in pursuance of the Con- 
stitution, which seems, accidentally, we 
suppose, to have appeared for tlat occasion 
only; third, the accidental falling of 
President Johnson upon democratic associa- 
.tions and democratic beverages. 



It must be admitted that a sensitive and 
delicate Consititution, could hardly be ex- 
pected to venture out under such circum- 
stances. 

But *' with the year 1869, anew and pecu- 
liarly favorable change took place " Pre- 
cisely so. With General Grant in the 
White Hou^e any constitution wih the in- 
stincts of a tortoise might be expected to 
show itself. "There was, in fact," says the 
critic, with a burst of enthusiasm, "a bril- 
liant opportunity for the new administra- 
tion, not perhaps to change the result, but to 
delay sonse decades yet, the actual depion- 
stration of failure." 

T'ie public will regret to notice that therq 
are symptoms of degeneracy discoverable ia 
this scion of the house of Adams. The 
elder members of the family, while tliey do 
not seem to have been expected to maintain 
a position from year to year, yet do seem to 
have been able to maintain one throughout 
a single essay. But the critic of the North 
Amei'ican seems not equal to tha>/ endeavor. 
But a few lines back he was talking of the 
obligation of the constitution to restore it- 
self, if it did so, he critically decl >re3, 
" America vras right and the oldest problem 
in political science was successfully solved." 
But now, it would seem, not only tha.t *'he 
new administration is held responsible for 
the restoration of the ConstibUtion, but if it 
had been restored, it would not have salved 
the problem. It would not have hanged 
the " final result." Ic would only have de- 
layed yet for some decades, the actual dem- 
onstration of failure ! The failure of the 
Constitution il system was predestined. The 
most fortunate of administrations could not 
defeat, but only delay it for a few decades ! 
The founders of the ststem were deluded by 
a " chimera," and sooner or liter the chi- 
mera was bound to be exposed ! Precisely 
this doctrine was proclaimed by the Doctors 
of Demoi;racy with great emphasis in 1861. 
Then we were taunted, here and every- 
where, with 'he asser'ioE that the Republic 
was a failure; that the Republic was dead. 
Precisely 'hat doctrine was renounced wfth 
equal emphasis in 1865. Then the political 
confessionals everywhere were crowded with 
Democratic penitents, shouting-, through 
wnite lips, "The Republic shall live forev- 
er." But here is a melancholy case of back- 
sliding. A Massachusetts politiciatj, in the 
colums of a Boston journal, reiterates the old 
heresy — the Republic is a chimera, and un- 
der any administration its existence c^n be 
prolonged but for a few decades ! 

The republican theory of our political sys- 
tem is different from all this, and much simp- 
ler. Republicans do not believf "' fram- 
ers of the Constitution to have' been such 
empirics, as the critic of JVorth American rep- 
resents them to have been. They cherished no 
such chimerical purposes as he ascribes to 
ttem. They knew, as all know, that liberty, 



w'aich defies all aut'iorit5',isanarchv. Tbey di i 
not mean to make a home for anarchy. The 
fouiiders of the republic were practical men. 
They asserted the independence of the col- 
nies, nott'f the several individuals* compos- 
ing the colonics. Their ideas did not differ 
from the European idea aa to the quantum 
of power a Siate should possess. Whatever 
authority was possessed by other independ- 
ent States, that same measure of arthority 
they a&.=e'ted for the colonies. Such was the 
very lauguage of the gieat Declaration. 

"As free and tnslepenclent State?, they have full 
power to lv.vy war, coucliule peace, contract al- 
liances, estabbsh commerce, and do all other acts 
and things which independent States may of right 
do." 

The difference between the American and 
European systems was simply this. In the 
latter the Monarch was the source of author- 
ity while in the former, all auti ority was 
derived from the People. 

The people of each State gave to their 
political agents who might be called from 
time t J time to administer governments for 
them, respectively, just so much or so little 
power as they thought best, reserving to 
themselves the ^ight to select the agents and 
the riglit to take from or add to their author- 
ity at pleasure. 

Ti ere is a limit to that supreme irresisti- 
ble authority, which the critic of the North 
American in-ists is vested in the Parliament 
of Great Brittaiu. Even that Parliament 
can not niike a man to be a woman or a 
woman to be a man. All the lawyers are 
agreed to that. So there is a limit to the 
authority which the people of the several 
States conferred upon their agents. Their 
agents were not authorized to m-ake men of 
women or women of men. But they were 
authorized lo do worse t'oan either, for they 
could make chattels, mere things of barter, 
of both men end women ; and they did it 
to more millions than the colonies numbsred 
when they declared their independence. 

Where authority is given to make slaves 
of men without the imputation of guilt, and 
to hang them for any conduct the govnrn- 
ment may choose to call guilt, it is idle to 
pretend the founders are afraid of nithority. 
It is true, that when the federal constitu- 
tion was framed, its framers granted author- 
ity more spiriugly.. But that was not be- 
cause they feared it, but because they loved 
it, and wanted to hold on to it- 
Only a part of (he sovereign authority 
was confeired upon the new Government. 
That is true. The balance was withheld That 
is true. Republicans do not differ from 
Democrats upon these points. - 

But when the question arises, whether a 
particular authority is or is not granted. 
Republicans prefer to consult the text of 
the Constitution rather than the Democratic 
platform. And if the question be doubtful, 
they prefer to take the judgment of the 



Courts rather than the determination of a 
Democratic convention. 

A' d, unlike the Democratic expositor of 
the Review, Republicans believe the Consti- 
tution to be a commanding guide to admin- 
istration in war as well as in peace. They 
do not believe the Constitution was framed 
upon the tortoise theory. 

They do not believe that all "paper lim- 
itations" were desig'ied to yield when the' 
existence of the nation is at stake. They 
know the life of the nation is always at 
stake. Not hostile armies and navies alone 
imperii the existence of the nation. The 
opening of a gin shop, or a gaming house ; 
the closing of a church, or a school house ; 
the planting of any bad influence, or the 
suppression of any good influence, are 
events which threaten the life of the nation. 
The quarterly appearance of the North 
American, if it is to be constantly charged 
with the sophisms of Mr. Adams, may come 
to be a greater peril to the nation than the 
parade of a rebel battalion. But the rebel 
and the Review must be resisted alike, by 
constitutional and not by unconstitutional 
means. War may disperse the one, and 
wisdom will expose the other, but the con- 
stitution will not yield in the presence of 
either. 

Aid surely he is a blind or a reckless com- 
mentator who asserts that the "Cons itution 
was obliterated" during the late civil war. 
On the contrary, it never was more vigor- 
ous, and no national ordinance upon so great 
a. trial was ever so triumphant. All the au- 
thority conferred by the Constitution Is 
either legislative, executive or judicial. 
The whole end of the Constitution is to cre- 
ate the tribunals which shall wield those 
three kinds of authority — to define how 
much each may exert, and to provide for 
t eir selection. The Cons'itution has no 
other purpose. It vests executive power in 
a President, legis.ative power in a Con- 
gress and judicial power in certain Courts, 
So long as laws are enacted by a Congress 
chosen as the SDpreme law requires, are in- 
terpreted by courts and executed by a Pres- 
ident appointed as the same law provides, 
the Constitution is not obliterated and can 
not be. And precisely such were the 
agents who administered government dur- 
ing the whole war and during all the years 
since the war. It is true, that for a time, 
some of the pre-existing states were not 
represented in Congress and did not partici- 
pate in the choice of a President. But that 
was not because the Constitution was ob- 
litt-rated, but because tlie people of those 
states had abjured it. It was not because 
Congresses and electoral colleges had ceased 
to exist, but because through crime, they 
had forfeited the right to be represented in 
them — at least so a Republican Congress 
declared, and so a Democratic supreme court 
decided. 



Congress may have passed acts v?hich 
contravened the Constitution. But an act 
of Congress which vioh^tes the Constitution 
does not "obliterate " it. On the contrary, 
the Constitution o\;literates the act. Con- 
gress cannot "obliterate" the Constitution 
by violating it, any more than Wilkes Booth 
could abrogate the penal code by the mur- 
der of a President — any more than Brooks 
Adams can repeal the ninth commandment 
by bearing false Avitness against his govern- 
ment and his fellow citizens in defiance of it. 

How far Congress is answerable to the 
charge of legislating in violation of ihe Con- 
sticution, may be judged from the fact that 
all its acts have been exposed to the review 
of a Democratic Supreme Court, having full 
power to abrogate any act which did 
contravene the fundamental law. Thai 
court ha3 condemned just two act? passed in 
ten years. One was the act prescribing the 
test oath to attorneys in the lederal courts, 
which was pronounced invalid by tive judges, 
all of whom weie Democratic, and pro- 
nounced valid by four judges, three ofwhom 
ace Republican and one Democratic. 

Th'» other was the legal tender act, of 
which particalar mention will be made pres- 
ently. 

It is true, that under Republican lead, the 
Constitution has been anif^nded. But those 
amendments do not add authority to govern- 
ments or take power from the people. The 
purpose of them was exactly the reverse — 
to deny power to the adiainistration aud re- 
store it 10 the people. 

Before they were adopted as all know, the 
legislature in nnny of tlie States, 'and the 
people iu any of t' em, could mak' slaves of 
citii'.eos. That power no longer exists in 
any legislature, Siate or National. It is de- 
nied to all adm.ini&t rations, Republican and 
Democratic alike. Henceforth it will re- 
quire a concurrence of the people in three- 
fourths of the States to mak"^ a Slave in any 
State. If the critic of the North American 
distrusts autiiority as much as he professes, 
he ought to give thanks for t .is addi.ional 
restriction upon it. 

Republicans do not believe "the oldest 
problem in political science" to be whether 
the Con titution would "yitld " in the pres 
ence of war, or " restore itself" when war re- 
tired. They know tiie Constituti m has no 
volition of its own, and can neither come 
or go at its own will. 

T at problem was, whether tlie peoplehad 
courage to confront a giea'- peril, constancy 
to endure the j^rivations demanded by it, 
and wisdom to select the proper agt*nts to 
surmount it. The people comm^uded dur- 
ing the late war. Their agents made laws 
find their agents executed them. Five 
thousand millions of dollars have beed ex- 
pended. But 'he people required it. Two 
millions of soldiers have been set in the 
field. But the people ordered it. In 18(54, 



the sublime spectacle was ex.hibitpd of a 
free nation called to decide whether they 
would have a President who proposed to 
lead them to further war for the chance of 
vindicating the Constitution, or one who 
proposed to lead them to peace at the sacri- 
fi e of the Constitution. And just then, 
when the issue was peace or war, and the 
continent shook with the tread of armed 
men, elections were never more orderly 
and the ballot box never spoke with more 
freedom or with more authority. 

Republicans are disposed to regard " the 
long scientific dispute settled — Mr. Henry 
Brooks Adams thinks otherwise. 

It, seems "the more conservative class of 
of citiz ns" have misunderstood the char- 
acter of the President. Precisely what the 
mistake is, does not appear — indeed the 
critic himself docs not profess to_ know. 
He has made inquiry it seems. But, "as a 
rule, the reply to every inquiry comes in, in 
tlie form of confessed ignorance — ise do not 
know why tlie Premlent is successful, v;c oiily 
know h- is success/id." One would suppose 
that was enough for a Statesman of the 
Adams school to know. Bat it does not sat- 
isfy the investigator of the Heview. Ac- 
cordingly " without attem.pting to explain 
whit' is evidently so complicated an 
enigma," he ventures to form a partial idea 
of the mystery. He enters upon a critical 
analysis of President Grant's mental and 
moral organization, his education, pas' ex- 
periences, &e., and comes to ti^e conclusion 
that such infliieoces " would De likely to 
produ e a coarse of action in the main 
practical, sensible and in intention thorough- 
ly honest. But when used by Jay Gould and 
Abel Rathbone Corbiu, with the skill of New 
York stock brokers, for illigitma e objects, 
the result is all the more disastrous in pro- 
portion to the enei-gy for which the President 
is so remarkable." 

Here is a discovery in physiological sci- 
ence doubtless of mujh importance to the 
welfare of mankind. 

It should not be forgotten that where a 
man, pr:',ctical, sensible thoroughly, honest 
and remarkably ene.getic, as President Grant 
is, falls into the bands of Jay Gould & Co., 
mischief is likely to ensue. But as the 
critic does not assert that 'he President has 
fallen into such hands, and as all know that 
a man practical, sensible and thoroughly 
honest, is not likely 'o fall into such hands, 
wg fail to see how ^u 'h characteristics 
should d ter the Constitution from restor- 
ing itself. 

Having exhausted his criticism upon the 
Constitution, and abando.iing the effort to 
explain why it did not restore itself after 
the war had closed, and under the encourage- 
ment of a new administration, the critic 
finally comes down to business and proceeds 
to review the work, not of " t'le session," 
but of the administration. Commencing as 



was proper with the head, he accuses the 
President of a total miseoiiception of the 
duties of his office. He thus states the 
President's idea of official duty, and what 
be considers the true idea. 

"He V)'as to watch over the faithful administration 
of the government; to sea that the taxes were 
honestly collected; that the disbursements were 
honestly made; that economy was ptrictly en- 
forced, that the hiws were everywhere obeyed, 
good and bad alike " 

* * * " It is scarcely necessary to say 
that this is not the range ot duties prescribed to 
an American President either by ihe'Oonstulion or 
by custom." 

* '■' * "The President may indeed in 
one respect resemble the commander of an a'my 
in times of peace, but in another and more esen- 
ti;il sense he resembles the commander of a ship 
at sea. He must have a helm to grasp, a course to 
steer, a port to seek." 

The President oui^ht not to be too severe- 
ly rebuked for this iniscon< eption of his 
official duties. He was doubtless betrayed 
into it by the frainers of the Constitution 
They made precisely the same mistake 
The only duty they prescribed to the Presi 
dent to be independen-tly exercised, beside 
that of grant'tig repr-evesaud pardons, and 
filling vacancies that may l.appen in the 
recess of the Senate, is that of seeing that 
" the laws be fnithfuliy executed." 

Besides, the President had probably read 
of an English King who in the latter prrtof 
the 17th centuiy imbibed the Adams' notion 
that iie had a helm to grasp, a port to seek, 
and thought it his duly to prevent the exe- 
cution ot bad laws. He lost his grasp upon 
the htlm ; he lost his crjwn, and was glad 
to seek a port in France, wiiere he died one 
day, a pitiful specimen of a King. 

So far, this reviewer of the lato session, 
lias nidUe but two points: 

1st. That tlie framers of the constitutional 
system aimed at the chimera of a govern- 
ment without power, and that the "demon- 
stra' ion of failure " has been witnessed a 
few decades earlier than it ought to have 
been. 

2d. That while they did not intend there 
should be any power in the Government, 
they intended the President should be as ab- 
solute a^ the master of a vessel at sea. 

He next proceeds to consider the Secreta- 
ry of t!^ e Treasury. 

His discu«s!on of the Secretary is em- 
braced under three heads: 

1st, The nature of the office. 

2d. The personal ch.aracler of the present 
incumbent. 

■od. His administrative act.s. 

H's idea of the office is succinctly stated 
in these two sentences: 

" In the English system the head of the adminis- 
tration commonly occupies the post of Premier 
Lord of the Treasury. 1m the American form ot 
Govrrnm'Dt the head of the Treasury is also the 
post of real authority, rivalling thai of the Presi- 
ident itsslf, and almost too powerful for harmony 
or subordination." He urs-es that it was especial- 
ly important that the Secretary should have real- 



( ized this idea of his office " at a time like the sum- 
mer of 1809 when old is-nes were passiug a-vay 
and a new condition of thingpi was at hand, when 
the public were wa!/'i;;/7<o 6«i«d or mildly kneel- 
ing to take up its master. ^^ 

One cannot help thinking thj founders of 
our political system were extremely unforta- 
nate considering their fear of power, that 
they should have exposed it both to a Presi- 
dent as absolute as the master of a vessel at 
sea, ard a Seer tary of the Treasury who 
should oc -upy iha postof real authority. 

But I must earnestly remonstrate with our 
critic against his idea that the people of the 
United Slates were, in the summer of iStlS, 
or that they are this summer, or are likely 
to be next summer, mildly kneeling to take up 
amaster. That the people want a master, is 
an idea said to have been cherished by the 
first Adams. I affectionately entreat this last 
Adams to dismiss it. This is especially an 
incpportune moment in which to promulgate 
it The people of other countries have cr- 
ried masters for long periods; but not qui- 
etly or securely — that is shown by the uuta- 
ber of j?ckeys now stalking over Europe ou 
foot, who formerly rode. One notable one 
hasju^t been dismounted.' 

The people of the United States may pos- 
sibly be taught to narry a master But as 
yet they have not been broke to the saddle, 
and I could not honestly advise the Stite- 
man of the North American to be the first to 
mount. 

In portraying the pergonal character of the 
8ecietary,our critic is more successful. There 
is something very like humor in that part 
of his essay. It would be ( leasant reading 
if he were not treating of matters of the 
gravest public concern — deeply affecting the 
welfare of forty millions of peojjle. On 
such them' s, all trifling seems out of place. 
But one cannot help thinking that if the 
essayist seeks distinction in the literary 
world, he should stick to char,icter and let 
the Constitution alone. Because, upon a 
question of character, he cannot be so con- 
ciu.-ively contradicted as upon a question of 
the Constit'ition. There are, I suppose, com- 
paratively few men in the United States, 
who know the Secretary of the Treasury as 
well as the essayist of fie North American. 
I suspect, also, there are comparatively few 
who do not underitand the Conslituticu a 
great deal better. 

Besides, he evidently has talent for de- 
picting character, and none at all for expound- 
ing fe Constitution. N.it that I imagine he 
has in this inst nee unfolded the Secretary 
a whit more truthfully than he has the Con- 
stitution. But he demons'rates his ability 
to sketch character as Hogarth did, by the 
facility with which he produces carricature. 

But the American people are much less 
concerned to know what Mr. Boutwell is, 
than what he has done. The specific 
charges agp.inst hi3 administration are 



these : First, tb&t before the session com- 
menced, "he had only a single object ot en- 
thusiastic aubition, but this was to redeem 
the national debt. To do this, from day to 
day ; to eoilect more and more millions from 
the people, no matter by what devices; to 
cut down tlie expenses to their lowest 
point; to accumulate the surplus in the 
treasury; to buy with it month by month 
more and more of ihe governijK>nts own 
debts, and thus, to see tl.e huge nias^ of in- 
debtedness slo-:?ly dwindle and diminish in 
* his hands." 

I do not know tha* Mr. Boutwell had no 
other ambition than that. I fully believe 
he had tliat. I do not believe his best 
friends can defend him against that charge. 
It can be proved against him by ollicial re- 
ports. Comparing the first eiglil'-en mouths 
of his adminibtratiou with tlic last eighteen 
months of Mr. McCullough's administration, 
who was a Democrat, the confast is start- 
ling. In that time he swelled the revenue 
by the enormous addition of $87,213,705.60. 
In the same time he reduced the expendi'- 
ures no less than $82,853,060.77. Mr. 
MpCullough in the last eighteen months ol 
his service, reduced the public debt $1,">83,- 
460.67. In the first eighteen months of Mr. 
Boutwell's administratioa it was reduced 
$169,542,109.60. 

The devices by which he achieves these 
results were simply the laws. His prede- 
cessors employed substantially the game. 
So far as there was anv dilfereuce in the 
laws, it was against Mr. Boutwell. 

If the American people concur with the 
critic of the Not th American, that fidelity in 
collection of the revenues and economy in 
their disbursement, are crimes — the sooner 
they dismiss a Republic an administration and 
instal a Democratic one, the sooner such 
crimes will be banished from society. 

But in December, the session convened. 
Then two other delinquencies were detected 
in thd Secretary of the Ticasury. They are 
exposed in two almost consecutive sentences 
of the critiq.ie. First, it was mademanifest 
even beyond the necessity of any *' express 
assurance " that the administration " was 
harmonious." 

Sei.cnd, "The President and the Secretary 
of the Treasury were discovered exprtssing 
oiAnionn and offering recommaidaiions dia- 
metrically ojiposed to each other.'''' Tlie italics 
are mine, but I ask nothing for the use of 
them. We are not informed in what the 
contradiction consisted. We are not told 
what either recommended. We are not ad- 
vised which was right and wHich was wrong. 
In this state of the pleadings, I cannot enter 
upon the Seoreary's de*'ence. But I respect- 
fully insist that the President and his Sec- 
retary ought to be allowed either to agree 
or disagree. Did they agree ? Then they 
did not express opinions diametrically op- 
posed to each other. Did they express 



opinions diametrically oppo?ed to each 
other ? What more conclusive evidence of 
exalted merit could either olficer give ac- 
cording to this critic's estimate of their re- 
spective offices ? 

One is "the commander of a ship at sea," 
he informs us, " with a helm to grasp, a 
course to steer, a port to seek." With 
equal force and elegance of expression ho 
charges t'ne oiher with the duty of " stamp- 
ing upon the President and his administra- 
tion the impress of a stroLg controlling 
mind." 

Of course the President must have had 
opinions of his own— else what use ror him 
to grasp the helm ? Uow could he steer a 
course ? What probable, chance for him to 
make a port ? 

And of couv.<e the Secretary must have 
had opinions also; else how could he stamp 
upon the Commander "the impress of a 
strong controlling mind"? Suppose their 
minds happen to differ ; how could either 
yield? How could tLc Commander surren- 
der to the controlling mind or the controll- 
ing mind to the Commander? Does the 
Statesman of the North American think the 
Constituiion required each to stand upon big 
own opinion and fight it out on tint line ? 
That duty seems to be suggested by one clause 
of the essay. He reminds us, with some- 
thing like a sneer, after assail'ngthe ndmin- 
istration for its harmony, that "an admin- 
istration which did not care enough for its 
own opinions to quarrel about them is natu- 
rally harmonious." 

But this suggestion is exploded a few 
sentences later. For, when hu arraigns the 
President and Secretary for having expressed 
opinions opposed to eacii other, he charges 
them with apparent unconsciousness, "that 
under all theories of government it is usual 
there should be a head." But wheie there 
is reaily a head there is no fair show for a 
quarrel. And if there is a quarrel especially 
between the "commander" and the "con- 
trolling mind," there cannot be even the 
ghost of a head. I abandon the^enigina, and 
for a moment turn from the reviewer to the 
Review, and I liumbly ask if that style of criti- 
cism satisfies the standard of the North 
American Quarterly ? Is it criticism, or is ' 
it the emptiest of all pocsible cavil? Does 
not t^-e Review needlessly transcend the lim- 
its of its own proposed toleration wben it 
admits such effusions to its columns. Is it 
not liberal enough when in the terms of 
Queea Dido's advertisements it offers itself 
to the embraces of Trojan and Tyrinn alike ? 
Will if, permit the defilements of Henry 
Brooks Adam3 also ? 

Three-eighths of the space allotted to the 
essay are exhavisted and the author has just 
reached his theme. Before he has traversed 
another eighth he has exhausted his theme. 
His theme is "The Session." But much less 
than an eighth of the article has any rela- 



tion to the work of the session. His stric- 
tures upon that work are embraced in two 
chapters. 

The first is a epirited narrative of what 
individual members are supposed to have 
done. 

The second chapter contains a lugubrious 
account of what Congress failed to do. 

The first chapter is worth reading as a 
specimen of composition. The author has 
talent for description, and genius for inven- 
tion. He might succeed as a n#velist. He 
must fail as a historian. For the work of 
criticism he lacks two essential qualifica- 
tions.-'jOne is some knowledge of what has 
been done, and the other some conception 
of what should be done. The special sub- 
ject of the first chapter is a fancy sketch of 
a series of dialectical tournaments, in which 
Sumner, Coukliu and Dawes, alternately en- 
tered the lists and successively unhorsed 
the administration. 

The session itself was a long one. Its 
worst enemy will not deny, it was a labor- 
ious one. No previous session in our his- 
tory has acte 3 upon a larger number of flif- 
ficult, anomalous and sharply debated 
problems. Reconstruction, currency, the 
traiff, internal taxation, refunding the pub- 
lic debt, appropriations, commerce, the 
public land?, education, naturalization — all 
these subjects, upon each of which, there is 
almost an endless variety of opinions, were 
considered and acted upon during the last 
session. Of all the acts, passed upon all these 
subjects, the critic of the North A7nerica7i 
has not a word of rebuke to bestow upon one, 
unless the first be an exception. But of 
reconstruction he professes to have little to 
say. That little he had better have left un- 
said. He says • 

"The resistance to these measures rested pri- 
marily on the fact that they were in violatiou of 
the letter unci spirit of the Coaeititution «s re- 
garded the rig'atls of States, and the justification 
rested not on a denial of the violation, but in the 
over-ruling fact of necessity." 

Republicans repudiate both the offienc-e 
imputed and the apology ofiered for it. 
They deny that there can be any over uling 
necessity fos violating ihe Constitution, or 
that the reconstruction measures violated it. 
A Democrat may be pardoned for calling 
the necessity which confronted the Re- 
publican party overwh&lming. It over- 
whelmed that party. But the Republican 
party met it and mastered it. The constitu- 
tionality of the measures by which they 
mastered it was affirmed by the Supreme 
Court, in the case of Texas vs. George W. 
Wliite, et al. Their expediency was em- 
phatically affiimed by the people in the case 
of Grant and Colfax vs. Seymour and Blair. 

Democrats, ambitious of proving the Con- 
stitution to be a chimera, and hoping still, 
in spite of past experiences, to return to 
power, have recently manifested a willing- 



ness to acquiesce in the reconstruction 
measures, if they could be ac;cepted as a 
precedent for disregarding the Constitution 
hereafter. Hence, with a magnanimity 
which seems generous in a partisan, but is 
intolerable in a statesman ; our critic ad- 
mits that notwithstanding their unconstitu- 
tionality, those measures "have become 
law." Republicans do not admit that an act 
which violates the Constitution can become 
law. 

But while all that was done during that 
protracted session, is thus passed over with 
scarcely a word of complaint, jet the ses- 
sion is vehemently assailed for a sin of 
omission. Other Congresses have been 
judged upon the merits of what they have 
done. This it seems is to be condemned 
because of something it has omitted to do. 
It is charged with having omitted the sub- 
jeer, of " revenue reform." 

Republicans fancied that, when they had 
extinguished taxes to the amount of seventy 
millions, they Lad taken a pretty long step 
toward revenue reform. But there is one 
phase of revenue reform which tho session 
neglected. It is the phase known as "frea 
trade." That was not decreed. 

The subject of free trade is so old and so 
hackneyi d thut most politicians of (hat 
school can discuss it without telling what 
it means; many of them without knowing 
what i*t means. There are in this country a 
great many advocates of free trade who im- 
agine it to be a policy by which American 
manufacturers can be compelled to make 
goods as cheap as they are made in England, 
Ireland or Belgium. The critic cf tho North 
American knows better than this, and what 
is more to the 'purpose, he coufesse" what 
he Isnowa. Here is his avowal of the Epeci- 
fic purpose which animates the votaries of 
"free trade" : 

"To breaTj down ihe huge monopolies which the 
Central Government had created and was now en- 
gaged in supporting, and vihose corrupt influence 
was felt at every step, blasting all attempts at 
honest legislation, seemed the first and most press- 
ing necessity to those that believe tbai a purer po- 
liiical and moral atmo-phere was only to be found 
by freeing the country Irom them." 

Such is the purpose which inspired "the 
small Oody of men, in and out of oongress, 
who were determine J to force the issi-.e up- 
on it," for which "they hcd worked through- 
out the summer and f atumn with all the en- 
ergy they possessed,' and for wh'ch "they 
continued to work throughout the winter." 
American manufacturers must be "broke 
down." Such is the mandate ofDemocratic 
revenue reformers. Bat why "broke down" ? 
Surely these revenue reformers do not ex- 
pect that the American people will abandon 
the use of manufactured goods. Woolen 
and cotton faorics will still be worn. Shov- 
els and hoes must still be used. Chairs and 
tables will still be convenient. Cotton, 
woolen, leather, wooden and iron fabrics 



9 



must always be had. If American manufac- 
turers are to be broken down, foreign manu- 
facturers must alone be employed to make 
them ! 

Such is the end of Democratic "revenue 
reform." American manufacturers are to be 
broken down, that British manufactuiers may 
be installed in their places ! But why so ? 

The American manutacturer,it seems, is a 
"Corruptionist." But is the foreign manu- 
facturer absolutely pure ? The American 
manufacturer, it seem=, is a "Monopolist." 
Why ? Not because his foreign competitor 
is destroyed. No one proposes that, but be- 
cause he is somewhat protected against that 
competition. But who does not see that 
when American manufacturers are crushed 
out, the foreign fabric will be absolutely 
without competition ? 

I do not intend to discuss here the quss- 
tion of free trade. I simply wish to call at- 
tention to this auihoritative definition of 
what it means. I desire particularly to re 
mind the laborers of the United States, that 
they have never complained of ha^'ing more 
opportunities to work th.'ui they desired. 
Yet there are more than half a million of 
them to day employed in manufacturing. 
The revenue refotmers propose to crush these 
establishmerts and compel that wopld of 
labor to seek other employments. A cargo 
of Coolies disembarked in San Francisco 
creates a seisaMon in Massachusetts. But 
Democracy avows its purpose to destroy an 
industry which employs five hundred thou- 
sand laboiers. Fifty years of ooolie emigra- 
tion could njt so effectually paralyze Ameri- 
can industry fs a single session of Congress 
under the control of the socal'ed revenue 
reformers. 

A Massachusetts statesman and an Adams, 
makes this bold avowal. Massachusetts is 
eminently a manufacturing Scate. 

la 1807, Massachusetts was not a manu 
facturiug, but a commercial State. Then 
it was thiit the greatest of the Adamses de- 
claring "I would not hesitate, I would not 
deliberate, I would act," rushed forward to 
the support of that embargo which furled all 
her sails and moored all her shipc to their 
docks. In time of National peace the ocean 
was abandoned to Great Britain. That was 
thoughi by many lo have been a signal ser- 
vice to our great rivil. But now . the car- 
rying upon the high seas is once more in 
British hands. A war of rebellion inaugu 
rated by Democrats, and under the protec- 
tion of a Democratic admini--tration, has 
swept 0';ir commerce from the ocean. If 
now, at ihis juncture, this Adama shall suc- 
ceed in sweeping our manuf.ictories from the 
land, he will do for great Britain a service 
which his illustrious progenitor never 
dreamed of doing, and in one respect it will 
happen in that kingdom as it is in the King- 
dom of Heaven, "the least shall be great- 
est." Then, also, another scripture will be 



fulfilled, " for whosoever hath, to him shall 
be given, and whosoever hath not, from him 
shall be taken, even that which he seemeth 
to have." 

The next count in this "scathing arraign- 
ment" of the late session, strange to say, is 
framed upon an incident which transpired 
in the Supreme Court of the United Stated. 
It was a remarkable incident, and in this re- 
view, we have a still more remarkable ac- 
count of it. 

Siripping the account of that wordy 
rhetoric which swells and rumbles through 
many pE^ges, and repeating notuing but what 
is plainly asserted or clearly insinuated, the 
critic's storv amounts to' his:— that on the 
7th of February last, ' he Supreme Court 
rendered judgment in the case of Susan and 
Henry H. P, Hepburn vs. George A. Gris- 
wold; that the Court then held the act of 
1862, known as the legal tender act, to be 
unconstitutional so far as it applied to debts 
contracted before its passage; that tha 
opinion of the court in that case contained 
a correct exposition of the constitution; 
that although there were then only seven 
judges on the bench, with two vacancies to 
be filled, only four of the seven concurring 
in the opinion, yet the opinion was actually 
read in consultation on the 29th of January, 
when there were eight judges upon .the 
bench, no vacancy to be filled, and that five 
judges agreed in the opinion ; that the 
Presideni, Secretary of the Treasury and 
the Attorney General resented the decision 
of the Court; that they resolved to pack the 
Court for the purpose of procuring a rever- 
sal of that judgment ; that with that view 
Messrs. Strong, of Pennsylvania, and Brad- 
ley, of New Jersey were appointed Associ- 
ate Justices; that there were on the calen- 
dar when the case of Hepburn against Gris- 
wold was decided two other causes involv- 
ing the same question ; that they had been 
passed with the understanding that they 
should abide by the result in the Hepburn 
case; that immediately after Justices Strong 
andBradley had taken their seats theAttorney 
General moved to set down those other 
causes for argument, that the decision of 
that motion turned upon the question 
whether or not it had been the understand- 
ing that the two cases were to abiJe the 
issue in the Hepburn case — that the four 
judges Y/ho concurred in the opinion in the 
Hepburn case agreed also, that the other 
cases were to follow it — that it is not known 
what the then dissenting judges thought 
upon that point, that "it remained tor the 
new judges to decide the dispute, and they 
accordingly did decide that the order had 
not been given"; that the four judges re- 
sented „hat decision ; that " they mast have 
resisted with desperation." That they "must 
have been crushed by the President and Con- 
gress" ; that an impeachment of the four 
judges was imminent; that the public was 



very anxious ; that the name of the 
Chief Justice was Chase ; that Jess than 
seventy years ago, there was sn attempt 
to impeach a judge by the name of Chase ; 
that the attempt was so nefarious, that the 
critic's own grand father immediately after- 
wards left the party which defeated and 
joined the party which made it ; that just 
at that critical ju^ncture, on the 20th of 
April, the day set fov t'le argument of ,the 
two causes, when "thejudges aud the coun- 
sel went to the capitol ready to lace the 
issue " on that " occasion of extraordinary 
interest," where there was "a practical strug- 
gle between the dignity of the court and 
the power of Congress" ; when "ordinary 
observers could only think with terror of the 
irreparable harm that might result"; just 
then the appelknta appeared in court aud 
perpetrated " a stupendous practical joke" — 
they withdrew their appeals and " covered 
the whole proceeding with ridicule !" 

A lew words will suffice to show how much 
of fact and how much of pure fiction 
there is in this wonderful romance. 

The court did render judgment in the 
case of Hepburn vs. Griswold on the Yth of 
February last. 

The court did hold the legal tender acts 
to be unconstitutional so far as they ap- 
plied to debts contracted prior to its pas- 
sage. There were then only seven judges on 
the bench and there wene two vacancies. 
Four judges Jtc? concur m the opinion and 
three did dissent. It is doubtless true that 
the opinion in the case was read in consul- 
tation in January. It is true there were 
then eight judges on the beech. It is prob- 
ably true that five of the eight concurred in 
the opinion then, read by the Chief Justice. 
It is not true that there was then no vacan- 
cy on the bench. There was one vacancy 
occasioned by the death of Justice Wayne 
and the nomination of the Attorney General 
himself was then pending before the Sen- 
ate to fill it. The opinion of the court in 
that case may or may not have been correct. 
The legal tender ect may or may not be un- 
constitutional. 

Upon that question there is a difi"erence 
of opinion. The critic of the No7-th Amer- 
ican thinks it unconstitutional. But the 
weight of his authority is somewhat shaken 
by the fact that a majority of both Houses 
of Congress pronounced it constitutional. 

The Supreme Court of Kentucky pro- 
nounced it unconstitutional. But the weight 
of that authority is somewhat impaired by 
the fact that the Supreme Court in the £tate8 
of New Hampshire, New York, Pennsylva- 
nia, Iowa, Wisconsin, Michigan, California, 
Massachusetts, Vermont and Indiana have 
pronouncad the same act constitutional. 

When, eight years after its enactment, 
the validity of the act was put in issue be- 
fore a fragment of the Supreme Court of 
the United States, it is true that Justices 



Nelson, Clifford and Field held it to be un- 
constitutional. Bui the weight of their au- 
thority is some rt-hat diminished by the fact 
tbai Justices Miller, Swayne and Davis held 
it to be constitutional. 

It is true that Chief Justice Chase then 
concurred with Ji'stices Nelson, Clifford and 
Field. But the weight of his p.utbority is 
exactly balanced by the faet that when the 
act was passed he wai Secretary of the 
Treasury; that his opinion upon the bill 
was asked while it wa? pending in the 
House, by resolution adopted by the Com- 
mittee of Ways and Mean?, and that on the 
29th of January, 1862, he replied to the in- 
quiry by a letter in which he used these 
words: 

"The provision making the United States notes a 
legal tender lias doubtless been weil considered by 
the Committee, and their conciusioii needfe no sup- 
port from any obsarvatioa of mine. I thinli it my 
duty, however, to say that, in retpcct to this pro- 
vision, my reflections have conducted me to the 
same conclusions they have reached." 

On the 3d of February, following, he wrote 
a further note to the Hon. E. G. Spaulding, 
a prominent member of that Committee, of 
which this is a part : 

"Mr.. Seward said to me, on yesterday, that you 
observed to him, that my hesitation in coming up 
to the legal tender proposition embarrassed yon; 
and I am sorry to observe it, ior my arxious wish 
is to support you in all respects. It is tru<! that I 
came with reluctance to the conclusion that the 
legal tender clause is a necessity, but I came to it 
decidedly, and I support it earnestly." 

And after the act had passed authorizing 
the issue of legal tender notes, in submit- 
ting hia next annupj report to Congress, the 
very report from which this reviewer quotes, 
he recommended the further employment of 
such notes, aud he defended their constitu- 
tionality by an argument from which the 
following is an extract: 

" The Secretary forbears an extended argument 
on the constitutionality of the suggested system. 
It is proposed as an auxilliary to thj power to bor- 
row money; as an agency of the power to collect 
and disburse taies; as an exorcise ot the power to 
regulate cummerce, and of the power to regulate 
coin." 

And a year afterward, in submitting his 
next annual report to Congress, and speak- 
ing of the same measures, he aeclared : 

"It is a gratification to know that a tribunal eo 
distinguished by the learniuir aud virtues of its 
members as the Supreme Court of New York, has 
given the sanction of its judgoieut to the consti- 
uiticnality ol the law." 

It may be, that the President, the ^,cretary 
and the Attorney General agreed ic thinking 
the opinion of the Court a '•Democratic 
electioneering trick" — but if the fact be so, 
the reviewer is the firsi to communicate \t 
to the world. The simple truth is, that the 
question of the validity of the legal tender 
act was not in February last, and never was 
a party question. The creditor class, whether 
Democrats or Republicans, were, as a rule, 



11 



deiig'htod with • the opinion of the Court, 
because they thought it ^ave them gold 
ir.Btead of paper in paymeiu of their debts. 
The debtor class, as a rule, revolted at the 
decision, because they thought it compelled 
then to pay gold instead of paper. Creditors 
rejoiced, because they thought it aided 
thirty-three per cent, to the value of their 
credits. Debtors grieved, because they 
tlior.glis it added thirty three per cent, to 
the burthen of their debts. Doubtless there 
were hiwyers, judges and statesmen in both 
parties who consiaered the ques ion solely 
in the light of the purposes and prescrip- 
tions of the Constitution, and irrespective 
of mere private interests. But whether the 
judges '^'ho concurred in that opinion were 
of the number, is a question upon which the 
narrfttive of this reviewer raises a painful 
doubt. 

It is irue, there were two other causes on 
the calendar involving the srme question 
decided in the Uepburn case. But they 
were not brought there by "the President 
and Congress." 

It is not true, that the President undertook 
to puck the court in order to procure a re- 
versal of that judgment. A mofo wanton 
calumny than that was never generated by 
party spite. Had Congress provided for an 
additional number of judges after that judg- 
ment was pronounced, and had the Presi- 
dent selected the number •vith special refer- 
ence to their opinions upon that one ques- 
tion, there would be some apology for mak- 
ing such a charge. But neitherof these things 
was doLic. Wnen that judgment was render- 
ed there! were two vacancies on the bench. 
One was occasioned by the death of Justice 
Wayne, who died a natural deaili and was 
not killed by "the President and Congress," 
although he was a Democrat. A.Ld the 
other wdSflccasIoned by the resignation of 
Justice;^P?er, who resigned his office, not 
withsli^iing he was a Democrat. It was 
tlie duly of the President and the Senate to 
fill those vacancies. Tbe President made 
both the selections before judgment was 
rendered in the Hepburn case. Both names 
were sent to the Senate on the very day that 
judgment was entered. And their opinions 
upon the legal tender question had no more 
influence upon their selection than had 
their opinions upon the question of paoii 
iniallibility. 

It is tiue, that on the first motion day 
affer Justices Strong and Bradley took their 
seats, the Attorney General moved to set 
down for hearing the other cases, involving 
the validity of the legal tender act. The 
newspapers at the time asserted — the review- 
er repeats the assertion,and there is too much 
reason to believe it true, that there was a 
serious attempt made to prevent the hearing 
of those cases. The pretext was "that the 
two cases referred to by the Attorney Gen- 
eral had been passed over by the court, with 



the understanding that they should abide 
the result in the case of Hepburn against 
Griswold, and that counsel had been so or 
dered." 

That such had been the understanding of 
four of the judges, we are bound to believe, 
because they said so. That such had not 
been the understanding of three of the 
judges we are bouna tobel'evefor they said 
so. That such had not been the under- 
standing of two of the judges we know, for 
they had not been on the bench and could 
have had no understanding about it. But if 
such had been the common understanding of 
the whole nine judges, all who are lawyers 
know,that such an understanding would not 
or should not have influenced the decision 
of the Attorney General's motion. Issues 
of law are not to be disposed of according 
to a judge's understanding of facts </e hors 
the record. Suits are brought into court by 
parties. They are brought that the par'iea 
may ba heardand then that their rights may 
be determined. B;:t there must be a hear- 
ing before a judginent. The question in- 
volved may have been tried a thousand 
times. All the judges of the court and all 
the courts in Christendom may be agreed 
about It, but the court cannot and dare not 
go to judgment upon it »ga'nst a new party 
without giving him an opportunity to be 
heard. Of course, in case of such unani- 
mity of opinion, courts will not allow their 
time to be uselessly consumed by t'.;e re- 
hearsal of arguments which have been al- 
ready urged aud considered. But if the 
new party have a new argument to urge he 
should be respectfully hnard. If different 
courts have decided the question differently 
tliere is the stronger reason for heai-ing the 
new party deliberately. If the court be one 
of last resort and the judges are divided 
upon tbe ouestion, these are additional rea- 
sons for Miviting re-argument. If in addi- 
tion to all this, there are upon the bench 
judges who have never decided the question 
nor heaid it argued by any party, it would 
be most extraordinary if She right to argue 
it should be denied to the new party. 

"K judicial decisions were to be lightly disre- 
garded," gays Chancellcr Kent, "we should dis- 
turb and unsettle the great landmarks ol' property. 
When a rule has been one. deliberatoiy aJopted 
•aud declared, it ought not to be disturbed, unless 
by a court of appeal or revie??, and never by the 
eame court, except for very cogent reasons." * * * 

"But," he adas, "I wish not to be understood to 
press too strongly the doctrine of stare decisis, 
when I recollect that there are mor^ than one 
thousand cases to be pointed out in the Euglish 
and American books of reports, which have been 
overruled, doubted or limited in their application." 

But here the question was, may parties b3 
heard who never have been heard — upon a 
question the gravest that can be tried ia 
any court, to-wit : the validity of an act of 
the supreme legislative authority — upon the 
validity of an act, too, which has controlled 
the business of a great country for eight 



12 



years — the validity of which had been sol- 
emnly affirmed by the Supreme Court of tea 
States, and denied by the Supreme Court of 
only one, — may they be heard before the 
Court ot last resort, in which the question 
had never been argued but once ; may it be 
heard by judges, three of whom had decided 
the question one way, three the other way, 
one both ways, and two had not decided it 
at all ? When such is the application made 
to the Court, if it is denied, some better 
reasuE should be offered than that one or all 
the judges had unders'ood that, the new par- 
ties, who had not been heard, should shave 
the fate of those who had been. 

The qaestion whetlier counsel in the new 
cases had been "ordered" to allow their 
clients to stand or fall hy the judgment that 
"Jiight befall in the Hepburn case, is a very 
different question. There was no such or- 
der. There are six reasons which compel 
lawyers to that conclusion: 1st. The coun- 
sel in the cases did not know of any such 
order. 2d. Three of the judges did 
not remember any such, 3d. The clerk did 
not know of any. 4th. The record did not 
contain an)'. 5th. The court could not 
have made any without permitting the parties 
to participate in the argument of the Hep- 
burn case. 6th Had there been such an 
order, judgment would have been entered in 
the new cases when it was entered in- the 
Hepburn case. 

Judicial records, not judicial recolkclions, 
import ubsolute verity. When a judicial 
record is pleaded in any court, it is allowa- 
ble to deny its existence, but not to deny its 
truth. 

But if this reviewer tells the truth, ho 
<'xhibits to the world four recusant judges, 
standing before their own altars— in the 
presence of their own officers — before their 
Offn clerk, who is their pen, to ir.scribe 
their decrees; who is their sun to daguerre- 
otype thoir resolves; setting the scandalous 
example of impeaching their own records, 
by an appeal to their own recollecions. 

•It is not true, that it remained for the two 
new judges to decide the dispute about the 
"understanding" or the "order." They 
did not decide it. They had nothing to do 
with it. There was an issue before thorn. 
There must be judgment upon it. JNot a 
word was found upon the record prescribing 
the judgment to be entered, and there was 
no alternative but to listen to the parties. 
It may be true, that the four judges resented 
the decision to hear the new parties. If so, 
it is a melancholy evidence that they had 
more regard for their own opinions than for 
the rights of parties before thera, or for the 
oldest and most sacred forms of judicial 
procedure. 

It is not true, that the four judges must 
have resisted that decision vith despera- 
tion. They were powerless. They could 
noi resist. It had been decided by the 



court to hear the parties. The four judges 
could not resist that determination. They 
could have done as partisans sometimes do 
in caucuses; they could have bolted, left 
the bench, aud refused to listen to the argu- 
ment. But the court would liave heard the 
causes and decided them all the same. 

It is not true, that the four judg*>s must 
liave been crushed by the President and 
Congress. The President and Congress are 
powerless over judges. It is true, Congress 
aloLe, if there be cause, may impeach a 
judge, and so a court, if there be occasion, 
may hang all the members of Congress. But 
all, except the critic oi' the North American, 
know that neither can be made to answer to 
the other for their official acts. 

The reviewer doubtless thinks an i&:peach- 
jient of the four judges was imminent, and 
there may be some hypocoadriac in Boston 
who thinks Mr. Henry Brooks Adams is in- 
tent upon his murder. But if Mr. Adams 
passes him daily for a year or two and makes 
no attempt to murder, the public w'.ll be apt 
to conclude the poor wretch is mistaken. 

There was no attempt to impeach either 
of the judges. 

It is true the Chief Justice bears the 
name of Chase. It is true, there weis once 
an atteaapt to ii^peach a judge by the name 
of Chase, and there may be a constitutional 
liability in men of ihat name to impeach- 
ment. But it should be a consolation to the 
Chief Justice to know that no one has sug- 
gested his impeachment except the critic of 
the North Americnii 

It is true, that, on the 20th of April, the 
appellants in the new cases, appeared in 
Court and dismissed their appeals. Many 
thousands of plaintiffs, since our forms of pro- 
cedure were invented, have submitted to 
voluntary non-suits. One idea has controll- 
ed them ail, and that is the convictiou that 
they could not recover. It may be true, that 
this late non-suit should, as the reviewer as- 
sures us, be accepted as a "stupendous prac- 
tical joke." 

But, if so, it is to be feared the appellants 
themselves will hardly be able to appreciate 
it, since they were thereby coir.pelied to ac- 
cept paper in payment of their debt?, when 
they had expected to clutch gold. The 
AmericaQ people will surely not appreciate 
it, since, by that little piece of pleasantry, 
the dubious rule assarted in the case of 
Hepburn vs. Griswold, is left in full force, 
unreversed, unexplained, unqualified, and 
yet having no more influence upon the ac- 
tual business of the Country than any res- 
cript to be found in the Zend-a'resta. 

Susan and Henry H. P. Hepburn will 
hardly appreciate the joke, since they would 
naturally be slow to understand why they 
should be required to pay their debts in one 
currency, while all other debtors are 
enabled to pay in a currency worth thirty- 
three per cent. less. If it be really a 



13 



practical joke, probably Georfce A, Griswold 
is the only man who sees exictly where the 
laugh comes in ; and he, because by a snap 
judgment, wrested from a fragment of the 
Court, which the full bench cannot repeal 
and will not reverse, has been enabled to 
wrench from one of his debtors payment in 
gold, while all other creditors in the land 
are compelled to accept paper. 

The only other count in this "scathing 
arraignment'- of the late session is framed 
upon the transactions connected with the 
St. Domingo treaty. The Preiident, in the 
exercise of his undoubted prerogative, 
negotiated a purchase of that part of St. 
Domingo under t'je Dominican Republic. 

The Senate in the exercise of its un- 
doubted prerogative refused to ratify the 
treaty. The President is a Republican and 
BO is the Senate. One would think here was 
an opportunity even for the critic of the 
Iforth American to hit somebody. 

Clearly the treaty was wise or unwise. If 
the reviewer would defend the treaty he 
might mf ke a strong case against a Republi- 
can Senate which rejected it. If he would op- 
pose the treaty he might make a strong case 
against a Republican President who nego- 
tiated it. But a hunter stands no more 



chtnee of hitting a moose than a mouse un- 
less he can pursuade himself to stand still 
and take aim. This critic cannot stand still. 
He will not say the treaty was right and the 
Senate wrong, or that the treaty was wrong, 
and therefore the President was wrong. 

But his only point is, that whether the 
acquisition of St. Domingo be desirable or 
not, we had no right to attempt the acqui- 
sition until we had completed the purchase 
of St. Thomas. In other words, however 
advantageous it might be to us to secure 
17,000 square miles in St. Domingo for a 
million and a half of dollars, we must first 
purchase 27 square miles in St. Thomas at 
seven millions. Indeed, he more than inti- 
mates that our obligation to take St Thom- 
as is "absolute and irrespective of condi- 
tions." 

If the Republican party had nothing to 
fear but the criticism of such reviewers, it 
would matter but little what they did. Mr. 
Henry Brooks Adams fights as Tom Sayers 
fought Heenan, not by trying to strike him, 
but by dancing about with extreme vivaci- 
ty in the vain endeavor to avoid being hit. 

I leave him and wait for the next Demo- 
cratic broadside. 

T. 0. HOWE. 



LI BR PRY OF CONGRESS 



013 7&6 573 7 • 



